Danner v. State

649 S.W.2d 679, 1983 Tex. App. LEXIS 4077

Opinions

BLEIL, Justice.

Charles Danner appeals by petitioning for writ of error from a judgment of disbarment. The critical issue concerns whether Danner’s responsive pleading was sufficient to constitute an answer thus preventing a default judgment based solely on the pleadings. We resolve the issue in Danner’s favor.

The State Bar of Texas, acting in the name of the State, filed its complaint alleging two counts of professional misconduct on the part of Danner. Danner, representing himself, responded with an answer which provided in substance the following:

“COMES NOW CHARLES A. DAN-NER, Defendant in the above entitled and numbered cause and enters a General Denial, denying each and every allegation of Plaintiffs [sic] Original Petition, and demands strict proof thereof.

“Defendant specifically denies professional misconduct as alleged in Count One and Count Two of said complaint, and demands strict proof thereof.”

Thereafter, the State Bar filed what it called a, “Motion for Judgment Nihil Dicit and Alternative Motion to Require More Definite Pleading.” The trial court set a hearing on that motion for November 10, 1980.¹ Danner did not appear for the hearing.

The trial court, without hearing evidence, ordered Danner’s pleading stricken. Then the trial court determined that Danner was in court without an answer and in default. The court found that because Danner had thus not controverted the misconduct allegations, he had admitted them. On this basis, Danner was adjudged guilty of professional misconduct and disbarred from the practice of law in Texas.

We now turn to the sufficiency of Dan-ner’s original answer. The State argues, without citing authority, that the answer did not comply with State Bar of Texas, Rules and Code of Professional Responsibility art. XII, § 25 (Vernon 1973). This section, entitled, “Answer of Defendant” provides that,

“The answer of the defendant to the Formal Complaint shall either admit or deny each allegation of the complaint, except where the defendant is unable to admit or deny the allegation, in which case defendant shall set forth the reasons why he cannot admit or deny.”

We find nothing in the State Bar Act which would indicate that Danner’s answer does not comply with the pleading requirements of Section 25 and with the Texas Rules of Civil Procedure. Indeed, the trend of the law has been toward notice pleading and away from a pleading of all facts relied on or denied. Tex.R.Civ.P. 45; Sherrod v. Bailey, 580 S.W.2d 24 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref’d n.r.e.); Tennell v. Esteve Cotton Co., 546 S.W.2d 346 (Tex.Civ.App.-Amarillo 1976, writ ref’d n.r. e.); 2 McDonald’s, Texas Civil Practice § 5.02.2 (1982). Rule 45, defining our system of pleading, provides that pleadings are sufficient when fair notice is given to the opponent. It significantly concludes with the fiat that, “All pleadings shall be so construed as to do substantial justice.”

In deciding that Danner’s answer sufficiently placed the issues before the trial court so that a default judgment on the pleadings was improper, we are guided by Rule 1, Tex.R.Civ.P.² The proper objective of the rules of procedure is applicable, whether those rules be found in the State Bar Act or in the Texas Rules of Civil Procedure. Having concluded that Dan-ner’s answer was adequate to prevent a default judgment and a judgment nihil dicit, the judgment is one which is a post answer default; the answer constitutes neither an abandonment of Danner’s position nor an implied confession of any issues. Stoner v. Thompson, 578 S.W.2d 679 (Tex.1979). Therefore, the trial court’s judgment on the pleadings was improper because the State Bar was required to offer evidence and prove its case.

In view of our determination that Danner’s answer precluded the judgment entered against him the case must be remanded to the trial court for a trial on the merits. However, even if we had determined Danner’s answer to be insufficient, so that its striking by the trial court would have been proper, the trial court erred by failing to allow Danner to cure the defect, if possible. Tex.R.Civ.P. 90, 91; Cameron v. University of Houston, 598 S.W.2d 344 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref’d n.r.e.). Danner was entitled as a matter of right to an opportunity to cure the defect, if any, before judgment was rendered against him. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). Because of these errors on the part of the trial court Danner was not afforded substantial justice in his effort to obtain a just, fair, equitable and impartial adjudication of his rights.

We reverse the judgment and remand the cause to the trial court.

Footnotes

1

. The facts concerning a serious question about the adequacy of Danner’s notice of the hearing are omitted because we need not resolve that issue to arrive at our decision.

2

. Rule 1, Tex.R.Civ.P., entitled “Objective of Rules” provides:

“The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.”